The perils of instant messaging and the send button

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Posted in:HR and Employment|March 29, 2012 | Join the mailing list

I sit in my office, three phones to my right, my computer in front of me with outlook open, a secretary who takes phone messages and has access to my emails, the office receptionist who also takes messages and forwards calls
and a central fax machine that forwards me my messages. In short whether it is client, colleague or opponent I am rarely out of reach.

It has always been a sign of good service to be responsive, timely and punctual; but in an age of instant messaging the definition of timely has changed dramatically. Long gone are the days of clients accepting a 2-3 day delay as the norm whilst you wait to
receive correspondence. More and more people want a response and they want it now.

As useful as instant correspondence can be, especially with the constraints of working towards a deadline, the false sense of security found in a quick email or text raises a new set of challenges. In an attempt to provide an instant response, emails and texts
are sent before many people proof read and fully consider the reply they are giving. However, as with a letter, instant messages can be used as hard evidence and taken as fact in Court. Ambiguity in messages and the ability to hit send on a knee jerk reaction
has transformed the world of evidence in litigation. Initial document reviews and weighing up the merits of any claim often involves reading through rafts of emails to get to the essence of any dispute. Far more evidence has become available and the ability
to develop your client’s claim or defence based on text and email communications between the parties has made the world of contractual dispute much more complicated.

Relating this to the business world it has become more important than ever to ensure that employees keep emails clear and conclusive. Amendments to contracts should be finalised and agreed in their entirety and obtaining written confirmation can be the difference
between a disputable and non-disputable claim.

As good practice business needs to ensure that there are communication policies for employees and back-up systems to save messages sent. Further individuals need to remember to take their time when responding to messages especially in the wake of any dispute.
Messages sent in the heat of the moment are often the most incriminating.

Trial bundles are forever growing with more and more email correspondence being used as evidence in Court. It is vital to proof read what you have written and regard any instant communication as having the same importance as the written letter. The key is to
respond not react!

To discuss how we can provide further advice in connection with these issues, please contact Damian Carter, a Partner in our Litigation Team, by email to or alternatively you can call Damian on 0161 833 9211.

The information and opinions contained in this article are not intended to be comprehensive or to provide legal advice. No responsibility for this article’s (or the above link’s) accuracy or correctness is assumed by Berg or any
of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of the contents of this article.

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